Malik GUL HASAN & CO. and 5 others vs ALLIED BANK OF PAKISTAN

' SALEEM AKHTAR, J.---This appeal with the leave of this Court challenges the order of the learned Judges of the High Court by which the High Court Appeal filed by the appellants against the judgment and decree passed by the Special Banking Court, was dismissed..

2. On 17-6-1989 the respondent-bank filed a suit for recovery ci Rs,18,45,721 before the Special Banking Court which at that time was presided over by a Judge of the High Court. The respondent filed an application for leave to defend which was granted by order dated 5-11-1989 on furnishing surety to the extent of the amount claimed in the suit and the case was fixed for filing written statement on 19-11-1989. The suit was tried by the learned Judge of the High Court acting as Special Court established under the Banking Companies (Recovery of Loans) Ordinance 1979 and passed judgment and decree on 1-3-1993 in the sum of Rs,1 million with interest at the rate of 14% per annum with effect from 21st May, 1984 till realization and also to deposit deficit court-fee and the penalty imposed on it. The appellant filed High Court Appeal on 31-3-1993. On the same day the appellant filed an application seeking pet-mission to urge the ground that the Trial Court did not have the jurisdiction to try the case. Another application was also filed on the same day praying that the security already furnished may be allowed to subsist in appeal. On 12-5-1993 the learned Judges admitted the appeal subject to furnishing fresh solvent surety to the tune of decrial amount plus rupees one lac to cover the amount of future interest. The surety was ordered to be furnished within three weeks. The appellants sought extension of time for furnishing surety several times and ultimately as the appellant had failed to furnish surety the application for extension of time was dismissed and appeal was also dismissed.

3. Leave to appeal was granted to consider, inter alia, the following question of law:- . "Whether the change in jurisdiction brought about by Banking Companies (Recovery of Loans)

(Amendment) Act XVII of 1992 was procedural and operated retroactively so as to make the proceedings before the Special Court established under Banking Companies (Recovery of Loans)

Ordinance, 1979 presided over by a Judge of the High Court without jurisdiction thereafter?" .

4. From the facts stated above, it transpires that the High Court had demanded a fresh security under section 12(5) of the Banking Companies (Recovery of Loans) Ordinance 1979 (hereinafter referred to as the Ordinance and did not take into consideration the security which the appellant had furnished for securing the loan. The appellant's failure to furnish security led to the passing of the impugned order whereby the appeal was dismissed. The question whether fresh security under section 12(5) should be demanded or allow the security already furnished to be accepted as security for the decrial amount was considered in a Full Bench case of the High Court of Sindh in Usman Hussain v. Habib Bank Limited and 4 others (PLD 1988 Karachi 628). The question referred was "where the appellant does not deposit the decrial amount in Court before admission of appeal can the security furnished to the Bonk for repayment of loan be treated as a security for the purposes of admitting the appeal as required under section 12(5) of the Ordinance?" Ajmal Mian, J.

(as he then was) speaking for the Full Bench of which I was also a member observed in the following manner:- "7. A plain reading of the above quoted subsection (5) indicates that it does not prohibit the filing of an appeal without depositing of an amount equivalent to the judgment debt or at the discretion of the High Court furnishing of security of equal value to such amount but it prohibits admission of an appeal. To put it precisely an appellant/judgment-debtor can present an appeal without depositing of the decrial amount or furnishing of security in the above terms but he cannot seek admission of the appeal without either depositing the amount of judgment debt or at the discretion of the Court furnishing of security equivalent to such amount. It may also be noticed that the above subsection (5) does not specify the nature of security which is to be accepted but on the contrary it gives discretion to the Court to accept security equal to the amount of judgment debt.

In our view, if we were to accept the contention of Mr. Iqbal Kazi that a security furnished against a loan amount cannot be accepted as a security in terms of above subsection (5), we would in fact be reading into the above provision, the words 'other than the security already furnished against the loan amount', which are not employed therein. We are inclined to hold that the word 'security' used in the above subsection will include any security equivalent to the amount of judgment debt to the satisfaction of the Court. It will also include even the security which was originally accepted against the loan."

5. . We approve the above observation and agree that an appellant can offer the security already furnished at the time of obtaining loan as security required by subsection (5) of section 12 of the Ordinance and may prove that its value at the, time of offering it is sufficient to satisfy the decrial amount. On such satisfaction the Court can accept the same security for purposes of B subsection

(5) of section 12. This aspect was completely ignored by the learned Judges though he appellant had filed an application praying that the security furnished to the Bank should be taken as a security for the purposes of admission of appeal. No doubt the learned Judges admitted the appeal subject to furnishing fresh solvent surety and thus refused to allow the appellant to offer the same security. If the High Court would have given opportunity to the appellant to satisfy that the security already furnished to the bank was sufficient to satisfy the decree, then unless it would have transpired that it was 8 insufficient, the High Court would not have been justified to dismiss the appeal under section 12(5) of the Ordinance. .

6. Although the question of jurisdiction has not been decided by the High Court, leave has been granted to consider it. Decision on this issue is entirely based on the interpretation of provisions of law particularly the amendment made in the Ordinance by Banking Companies (Recovery of Loans) (Amendment) Act, 1992 (hereinafter called the Act). The learned counsel for the appellant contended that by this amendment, the words "ten millions" were substituted in clause (t) of section 2 of the Ordinance in place of "one million" thereby enhancing the pecuniary jurisdiction of the High Court as a Special Court under the Ordinance in respect of suits relatinkto bank loan and, therefore, all suits pending in the High Court in which tint value of the subject-matter was less than Rs,10 million could not be tried and were to be transferred to the Special Court having jurisdiction in the case. This question was considered in Yusuf Ali Khan, Barrister-at-law, Lahore v. Messrs Hongkong & Shanghai Banking Corporation, Karachi and another (1994 SCMR 1007) in which after referring to the provisions of the Ordinance, the amendments made by Ordinance .11 of 1983 and the said Act of 1992 and relying on the observations made in Mst. Yasmeen Nighat and others v.

National Bank of Pakistan and others (PLD 1988 SC 391) it was observed as follows:- "From the above-quoted observations, it is quite dear that in spite of absence of a specific provision in Ordinance II of 1983, providing for transfer of pending cases, wherein the value of subject-matter was less than rupees one lac, from the Civil' Court to a Special Court, this Court held that such cases stood transferred to the Special Court on promulgation of Ordinance II of 1983, on account of omission of sub-clause 2(a) of section 6 of the Ordinance and the expression of the clear intention of the legislature to confer exclusive jurisdiction on Special Courts to try all suits relating to banks' loans, by enacting section 6(4) ibid. The above rule laid down in Mst. Yasmeen Nighat's case (supra) equally applied to the present case. The dear effect of the promulgation of the Act was that all pending suits, involving claim by or against a bank, in which the amount of claim was below rupees ten millions became exclusively triable by the Special Court mentioned in section 2(t)(i) of the Ordinance. The High Court, therefore, rightly reached the conclusion that all such suits stood transferred to the Special Court competent to try the suits under the Ordinance.

The change of forum for the Trial of suits was mere matter of procedure which applied to all pending cases in the absence of any prejudice to the parties. The appellant has not been able to show that he suffered any prejudice on account of transfer of his suit from the High Court to the Special Court. No vested right of the appellant was, therefore, affected on account of transfer of his pending suit from the High Court to a Special Court of competent jurisdiction."

' The same view was followed in Habib Bank Ltd. v. Messrs Aulia Engineering and others (1993 CLC (Lahore) 154) and Office Reference No, 259 etc. (PLD 1994 Karachi 258).

7. . It is well-settled principle of interpretation of statute that where a statute affects a substantive right, it operates prospectively unless "by express enactment or necessary indictment" retrospective operation has been given. (Muhammad Ishaq v. State PLD 1956 SC (Pak.) 256 and State v. Muhammad Jamil, PLD 1965 SC 681). . This principle was affirmed in Abdul Rehman v.

Settlement Commissioner (PLD 1966 SC 362). However, statute, which is procedural in nature, operates retrospectively unless it affects an existing right on the date of promulgation or causes injustice or prejudice to a substantive right. In Adnan Afzal v. Capt. Sher Afzal (PLD 1969 SC 187), same principle was re-affirmed and it was observed:- "The next question, therefore, that arises for consideration is as to what are matters of procedure. It is obvious that matters relating to the remedy, the mode of trial, the manner of taking evidence and forms of action are all matters relating to procedure. Crawford too takes the view that questions relating to jurisdiction over a cause of action, venue, parties pleadings and rules of evidence also pertain to procedure, provided the burden of proof is not shifted. Thus, a statute purporting to transfer jurisdiction over certain causes of action may operate retrospectively. This is what is meant by saying that a change of forum by a law is retrospective being a matter of procedure only. Nevertheless, it must be pointed out that if in this case process any existing rights are affected or the giving of retroactive operation cause inconvenience or injustice, then the Courts will not even in the case of a procedural statute, favor an interpretation giving retrospective effect to the statute. On the other hand, if the new procedural statute is of such a character that its retroactive application will tend to promote justice without any consequential embarrassment or detriment to any of the parties concerned, the Courts would favorably incline towards giving effect to such procedural statutes retroactively."

' The same view was expressed in Ch. Safdar All v. Malik Ikram Elahi and another (1969 SCMR 166) and Muhammad Abdullah v. Imdad All (1972 SCMR 173), which was followed in Bashir.v. Wazir Ali (1987 SCMR 978), Mst. Nighat Yasmin v. N.B. Of Pak. (PLD 1988 SC 391) and Yusuf All Khan v.

Hongkong & Shanghai Banking Corporation, Karachi (1994 SCMR 1007). .From the principle enunciated in these judgments it emerges that statute providing change of forum pecuniary or otherwise is procedural in nature and has retrospective effect unless contrary is provided expressly or impliedly or it affects the existing right or causes injustice or prejudice. .

8. The learned counsel for the respondent contended that the judgments hereinabove referred are distinguishable as in the present case the matter was pending in the High Court which had jurisdiction before the promulgation of the said Act and, therefore, although pecuniary jurisdiction had been enhanced, the High Court was competent to continue with the hearing of the case. This contention has no merits. Any statute, which enhances or reduces the pecuniary jurisdiction of a Court or provides a forum other than the one where the case is pending, falls within the category of procedural law and will be governed by the principles stated above. Where a statute enhances the pecuniary jurisdiction of the Court, it will have effect retroactively subject to the exceptions enumerated above. In Bashir v. Wazir All (1987 SCMR 978), the petitioner had filed appeal in the High Court directly as the value of the original suit from which the appeal had arisen exceeded rupees fifty thousand. During the pendency of appeal, by amendment in section 18 of the Punjab Civil Courts Ordinance, 1962, the pecuniary jurisdiction of the &Ugh Court to hear appeal was raised to the amount exceeding rupees two hundred thousand. . The Chief Justice, by an executive order, directed all regular first appeals up to the value of rupees two laces to be transferred to the respective District Judges. The petitioner challenged the jurisdiction of the District Judge, but it was repelled and the High Court also rejected it. The petition for leave to appeal was also dismissed by this Court holding that the amendment "had merely changed the forum in which appeal was to be heard and did not affect the vested right of appeal Such amendments are procedural in nature and are, therefore, operative retrospectively." The learned counsel has not been able to point out what prejudice would be caused to the appellant if the Act is treated to be operative with retrospective effect. He has only stated that there would be delay and further that the appellant did not object to the jurisdiction of the Court and for the first time it was raised in appeal. In fact both the parties should have been cautious in considering the jurisdiction of the Court has and furthermore, if by statute the jurisdiction of a Court been taken away, by consent of the parties, the same cannot be confirmed. So far delay in disposal of the case is concerned, the respondent is equally responsible.. While remanding the case this aspect can also be taken care of. . We, therefore, allow the appeal, set aside the impugned judgment and also the judgment and decree passed II'? The Trial Court and direct that the suit be transferred to the Special Court of competent jurisdiction, which shall start the proceedings from the date viz., 1-8-1992 when the said Act had been promulgated. As the case is an old one, the Special Court is directed to decide the suit within a period of three months and if need be, it should proceed with IF the case day-to-day. . revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.